Siman 374

One who robs a field and sells it or gives it to another, his actions are of no effect, even when the recipient did not know it was stolen, as was written in siman 373, and the victim can remove it from the hand of the buyer without payment. If afterwards the robber purchased this field from the victim, it is now established in the hand of the buyer from the robber or in the hand of the recipient of the gift. For our sages, of blessed memory, assessed that the intent of the robber in the effort he exerted to purchase it was in order to stand by his reliability toward the buyer or the recipient of the gift [Bava Metzia 16a]. Therefore, we do not say that just as the victim had the power to remove it from the buyer and the recipient of the gift, so too can the robber now remove it, since he has now purchased it. For even though this is certainly so, nevertheless we assess his intent that his primary purpose in his purchase was to establish it in the hand of the buyer and the recipient of the gift. And even if the buyer or the recipient of the gift was moribund at the time the robber purchased it from the victim, nevertheless we say that his intent was in order to stand by his reliability toward the children of the buyer and the recipient of the gift. And similarly, if the robber purchased it when he himself was ill and leaning toward death, we also say that it is pleasing to him that he should stand by his reliability after he dies [ibid. and see there in Tosafot s.v. "demit lokach"].

And one should not raise a difficulty: since the first kinyan that he acquired from the gazlan is nothing, with what does this buyer or recipient of a gift now acquire based on the kinyan of the gazlan from the nigzal? And even if we say that the intention of the gazlan was in order to transfer it to the first one, nevertheless, this is nothing more than "matters of the heart" that we should consider him like his agent, and why should it not be within the power of the gazlan to remove it from him? And one cannot say that with his money that he gave him previously he acquires now, for the money now is like a loan, and acquiring with a loan is not a kinyan [Tosafot], as was written in siman 190. Furthermore, for even in the case of a gift the law is so. However, with that benefit that the buyer or recipient of a gift relies upon him, he fully resolves and transfers it to them, and it is as if he said to him at the time he sold or gave to him: "This field is acquired by you for when I purchase it" [Tosafot]. And even though even if he had said so explicitly he would not acquire, for a person cannot transfer a thing that is not in his possession, nevertheless, in this case he acquires; for the primary reason that he does not acquire a thing that has not yet come into the world or a thing that is not in his possession is because the mind of the buyer does not rely [on the transaction], and here his mind relies, as he knows that he will do so in order that he remain in his trustworthiness [Maharsha ibid.]. Furthermore, this benefit that he regards him as trustworthy is considered by him like the receipt of money, and this is his kinyan, as if he received money [Nimukei Yosef ibid.]. And there are some of our teachers from whose words it is implied that the buyer must say to him, "I rely on you that you will place it in my hand" [Rashi], and so it appears from the language of the Shas there. However, some have written that it is not specifically when he said so explicitly [Nimukei Yosef], and so it is implied from the language of the Rambam, the Tur, and the Shulchan Aruch [and see what I wrote in Even HaEzer siman 51, section 1].

And even if the buyer summoned the robber to beit din when the victim of the robbery seized it from his hand, and the beit din wrote an adrakhta for the buyer against the properties of the robber, and afterwards the robber purchased it from the victim, we also say that it is pleasing to him to stand by his reliability and it shall return to the buyer. However, if he did not purchase it until the beit din began to make proclamations over the properties of the robber, and afterwards he purchased it from the victim, it is not established in the hand of the buyer; for since he waited until the matter was publicized, he certainly is not concerned that they will say of him that he is a reliable man, for if he were concerned for this, he would not have waited until the proclamations and he did not purchase it for the sake of the buyer. Therefore, the robber himself or his heirs can give the buyer his money, and in a gift he gives him nothing. And if it fell to the robber as an inheritance from the victim, it is not relevant to say that his intention was to establish it in his hand, for inheritance occurs of its own accord and not through his exertion, and it belongs neither to the buyer nor to the recipient of a gift.

If the owners gave it to the robber as a gift, there is a dispute in the Gemara [ibid.], as one says a gift is like a sale and the buyer has acquired it, for certainly the gift did not reach him without effort, and we say that because of this he exerted himself so that they would give it to him and it would be entirely his, and he would stand by his reliability so that it would remain in the hand of the buyer or the recipient of the gift. And one says that it is like an inheritance, for effort is only when he acquired it with money and not through the solicitation of a gift. The Rambam ruled that a gift is like a sale, and so ruled our teacher, the Beit Yosef; and even though it is a legal doubt, nevertheless we consider the buyer to be the possessor. But the Rosh and the Tur ruled that we do not extract it from the hand of the robber, who is considered the possessor, for all land remains in the possession of its owners, and it left the possession of the buyer after it became known that it was stolen and now it is in the possession of the robber, and it is upon the buyer to bring proof that his intention was to establish it in his hand. And so our teacher, the Rema, decided. And even though in Orach Chaim siman 153 we rule that a gift is like a sale regarding the matter that it is permitted to give a synagogue as a gift just as it is permitted to sell it, for if they did not have a benefit they would not have given a gift, nevertheless regarding this matter it is not possible to clarify that his intention was to establish it in the hand of the buyer or the recipient of the gift, and it is merely an assessment; therefore it is a legal doubt, and since we consider the buyer as not being the possessor, it is upon him to bring proof [see Magen Avraham, Megillah 26b].

If the robber took it from the victim and immediately [Beit Yosef] sold it to another, or gave it as a gift, or bequeathed it through a will, he has revealed his intent that he does not desire to establish it in the hand of the one to whom he sold or gave it while it was stolen. And there are those who disagree regarding this, for certainly if before he took it from the victim he sold it or gave it to another or bequeathed it, the first did not acquire it, for we see that he does not desire to stand by his reliability. But if he did this after he acquired it from the victim, it belongs to the first, for as soon as he acquired it, we establish it in the possession of the first based on the assessment, and we say that immediately he retracted, and he cannot retract. And when he sold it to another before he acquired it from the victim, and afterwards he acquired it from the victim, it remains in the hand of the other and he gives the money to the first buyer and remains with the field [Tur]. And even though regarding the first he did not want to stand by his reliability, nevertheless we say that regarding the second he wanted to stand. And it is possible to say that regarding the law they do not disagree, and even those who disagree admit that if immediately when he took it from the victim he sold it to another, his intent is not to establish it for the first, for there is no reason to say that in a short time his mind would change. And that which they said that afterwards it is not effective, this is when some time elapsed from his acquisition from the victim, for then we say that he retracted [and so it appears from the Beit Yosef in his book, see there and examine carefully].

If the gazlan collected this field from the nigzal for his debt, the Sages, of blessed memory, said that if the nigzal has no other land, there is no assessment that his intention was to establish it in the hand of the purchaser, for he intended to collect his debt. And even if he could have collected from movable property, we do not say that since he was precise to collect from the land his intention was to establish it in the hand of the purchaser, for most people desire land more than movable property because land exists forever [as is implied from the language of the Gemara ibid.]. And so too, even if the nigzal had other lands and without the request of the gazlan he gave him this land, it also does not belong to the purchaser, for the gazlan did not exert effort in this. But if he exerted effort in this and requested of the nigzal that he pay him specifically with this land, the matter is evident that his intention was to establish it in the hand of the purchaser. And it appears to me that this is specifically if it is not better than the other lands of the nigzal, for when it is better, there is no proof at all that he wanted to establish it in the hand of the purchaser.

Some say that since this law—where we say that he intended to establish it in the hand of the buyer or the recipient of the gift—is merely a legal assessment, therefore if there is a reason to say that his purchase from the victim of the robbery was for another purpose, such as if this field is adjacent to the fields of the robber or similar cases where it is possible to attribute his purchase from the victim of the robbery to this, the hand of the buyer is at a disadvantage, and he must bring proof that the intention of the robber was to establish it in his hand [Nimukei Yosef in the name of the Rashba]. And there are those who disagree regarding this, for in the Gemara they only spoke of when he sold it to another, or gave it, or bequeathed it, which proves by the circumstances that he did not wish to stand by his trustworthiness; but as long as we have no proof to the contrary and he exerted effort in its purchase, then we say that certainly his intention was to stand by his trustworthiness [the Rosh and the Tur].

And know that all that has been explained is only when the buyer did not recognize from the gazlan at the time he bought it that it was stolen, for then we say that since the buyer imagined that his purchase was valid according to the law and afterwards it became known that he sold it to him unlawfully, we estimate the intent of the gazlan that his desire is to stand by his reliability and to show the buyer that he is a reliable man in his sale. But if the buyer knew at the time he bought it that it was stolen, it is not relevant to say that afterwards when the gazlan bought it from the owner his intention was to stand by his reliability with the buyer, for behold he knows that the buyer did not intend from the beginning for the purpose of a legal acquisition [and what is written in Pitchei Teshuva that the Rash in Terumot chapter 6 mishna 3 disagrees on this is not so, for on the contrary, the Rash says it as an added point, that even when he did not recognize it, if he did not exert effort for it, his intention is not to establish it in the hand of the buyer; see there carefully].

Also regarding movable property the law is such: when one sold a stolen object and afterwards the robber took it from the victim, it returns to the buyer or to the recipient of the gift. And in the Yerushalmi Terumot [Chapter 6, Halacha 2] it implies that regarding movable property one is always obligated to establish his purchase for him; however, in law it is certainly not so, and the Yerushalmi can be explained in other ways, see there. But nevertheless, at any rate, it is no worse than land, and so wrote our teacher, the Rema, in siman 209, and see there.

A gazlan who brings witnesses that he purchased a field from the victim of the robbery was explained in siman 151, and an annas who extorted a field from an Israelite and sold it to another Israelite was explained in siman 236; see there.